Story Highlights

Wearing T-shirts with the logo, "He defines the badge," about 35 supporters of Wade Proctor, who is fighting his termination from the Ruidoso Police Department, filed into the village council chambers Tuesday for a hearing that could overturn or uphold the action.

At issue is whether a statement by Proctor captured on a recording constituted a violation of village policies against workplace violence, workplace bullying and the code of conduct, and if termination was the appropriate action or if a lesser punishment was warranted.

Village officials contended the remarks were a real threat to Village Manager Debi Lee and former police chief Joe Magill. But Yosef W. Abraham of the Carrillo Law Firm based in Las Cruces, representing Proctor, countered that the former interim lieutenant was just "blowing off steam" accumulated as a result of litigation against the village in which Proctor and Officer Lance Ledford were involved.

Hearings officer Steve Bell, a retired district judge from Roswell, will review the testimony and has a "reasonable" time period within which to return a ruling, Human Resource Director Tania Proctor said.

Stephen S. Shanor with Hinkle Shanor LLP, attorney for the village at the hearing, told Bell that in an effort to expedite matters not in dispute, both sides stipulated Proctor has a pending lawsuit against the village, Lee and Magill filed June 4, 2015, that claims violation of the state Whistleblowers Protection Act. Ledford's separate suit filed against the village on Dec. 17, 2014, also is pending.

The first witness called in the post-termination hearing was Police Chief Darren Hooker, whose testimony took up most of the morning, Shanor only called two witnesses, Hooker and Deputy Village Manager Ron Sena, who conducted the predetermination hearing on Proctor's dismissal. Abraham was scheduled to call four witnesses in the afternoon portion of the hearing and said his questioning of all four would be brief. But by 4:15 p.m., it looked like the hearing might stretch into Wednesday.

Hooker, who was hired in October 2015, said his decision to direct Sgt. Ray Merritt with the department's criminal investigations unit, to conduct an internal affairs investigation came after hearing in late February a portion of an August 2014 tape with remarks by Proctor that he construed as a real threat. After listening to the entire tape, he decided Proctor violated several policies. Punishment could range from an oral reprimand to a written reprimand and suspension, or termination.

"If it wasn't for the statement that has been transcribed, would you have terminated Wade Proctor for any other statements he made in the recording?" Abraham asked Hooker, who said he would not.

On the recording, Proctor was speaking to Ledford. He lamented that, "It's their word against yours or mine, whatever........I sat there. I was so (expletive) mad, and I just sat there and I just looked at her. Yeah, yeah, yep, that's all I did, and the whole time going through the Ally McBeal moments in my (expletive) mind, drawing my (expletive) gun, and putting one right between her eyes."

A pause while Ledford laughed, and Proctor added, "And then, (expletive) turning it on Joe and going, and I still got the drop on ya."

Hooker said he never watched the television series Ally McBeal, a show in which the heroine routinely fantasized interactions. Abraham then asked the chief if he knew the difference between fantasy and an actual threat.

"I think there can be a perceived difference," Hooker replied.

Bringing home his point, Abraham asked the chief if he ever raised his middle finger to a police officer and said "(Expletive) you." When he said he had, the attorney asked him, "Was it really your intent to have intercourse with that person?"

"It was not," Hooker replied to snickers from the audience.

"So do you think you were being a little too literal with Mr. Proctor's statement?" Abraham pressed. Hooker responded, "I do not."

A crowd of supporters of Wade Proctor showed up for the administrative hearing Tuesday on his termination from the Ruidoso Police Department.(Photo: Dianne Stallings/Ruidoso News)

Abraham then asked if village policies apply retroactively and Hooker said they can, because they are only periodically updated. He acknowledged he was unsure if the policies explicitly state they can be applied to prior conduct, or if all policies were in effect in August 2014.

After a break, Shanor and Abraham stipulated that on August 28, 2014, no workplace bullying policy existed for the village.

Abraham also challenged the meaning of the definitions for workplace violence and if threats constitute violence, if they are not made directly to the person, but go through a third party.

On March 8, 2016, Proctor was given a focus notification informing him of the intent to investigate the tape incident, along with a peace officer's bill of rights and other required documents, Hooker testified. About two weeks later, Merritt submitted his report and Hooker began contemplating his course of action. He called Proctor in and terminated him after preparing a memorandum outlining his reasons, Hooker said. Those reasons included that on the tape Proctor talked about using his weapon to harm the village manager and "then turn it on the police chief," Hooker said.

The conversation with Ledford occurred while Proctor was on duty as second in command and carried a weapon as part of his job, Hooker said. The remarks constituted a threat of physical assault, which violated the workplace bullying policy, he said.

Hooker said he chose termination in part, because someone in law enforcement is held to a higher standard. He knew the action would impact his department and the friends Proctor made during his years of employment, he said.

The chief clarified that a criminal investigation never was launched against Proctor, however a report was filed through the state police. Abraham pointed out through questioning that Lee never asked for a restraining order against Proctor, adding that didn't sound like a person who was fearful. But Shanor countered that filing a report showed her concern.

Abraham also noted that in nearly two years between his statements and his firing, Proctor showed no signs of planning to carry out the threat. The attorney attempted to illustrate that investigations were not begun in other incidents within the department involving violent remarks or perceived hostility.